Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Plain English Subcommittee of the
Publications and Website Advisory Committee. We seek to improve
the clarity of legal writing and the public opinion of lawyers by
eliminating legalese. Want to contribute a plain-English article?
Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038,
Lansing, MI 48901. For information about the Plain English Committee,
see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
get wordy because they won’t just say that something is what it
is (or was what it was). People sometimes have good reason to avoid
being too concrete: instead of saying that weapons of mass destruction
were in Iraq, some now say that they were considered to be in Iraq.
Instead of saying that Saddam Hussein was an immediate threat to the
security of the United States, our leaders now say that he was considered
to be an immediate threat. So adding some fuzzy verbs around a form
of the verb is can give the speaker or writer some weasel room.
But when weasel room isn’t needed, why cloud prose with fuzzy
verbs around is? Consider these examples from Michigan appellate
• A case is
considered ‘‘closely drawn’’ if a determination
of the defendant’s guilt essentially comes down to a credibility
contest between the defendant and her accomplice.
In this sentence, maybe
the court used is considered to signal that it was applying a
definition or a legal standard. But the use of quotation marks already
signaled that the court was applying a definition. Why wasn’t it
enough to say that a case is ‘‘closely drawn’’
if the question of guilt comes down to a credibility contest?
• It is considered
improper for a prosecutor to denigrate the defense with intemperate
and prejudicial remarks.
waffle on this one? Prosecutorial misconduct isn’t considered improper;
it is improper.
Look how much clearer
these sentences are if considered and helping verbs are omitted:
is considered to be clearly erroneous
if, after a review of the entire record, we are left with the firm and
definite conviction that a mistake was made.
• The Court
intimated that attempting to override deed restrictions by a change
in zoning might be
considered an unconstitutional impairment
To the extent that the prosecutor’s emphasis
on the mother’s suffering
might be con sidered
[was] excessive, the trial court in-
structed the jury
not to let sympathy affect
isn’t the only culprit in the wordy trend against just being. Sometimes
it’s not considered to be something, but said to be something:
• A contract
said to be ambiguous when
its words may reasonably be understood in different ways.
Where a purchaser’s expectations in a sale are frustrated because
the product he bought is not working properly, his remedy
is said to
be in contract alone, for he has suffered only ‘‘economic’’
In the two examples
above, courts were stating rules, not discussing academic hearsay. Again,
why waffle? The rules are what they are.
of define can also lead to wordiness. Why say that something
is defined as wordy when you can say simply that it is wordy? Why say
that it fits the definition of wordy? Why say that it meets the definition
of wordy? In either case, it just is. Here are more examples from Michigan
• For instance,
common law arson is
a general intent crime despite the fact that it is defined as
the willful or voluntary and malicious burning of the dwelling house
of another. (This one is a double-whammy—both considered and
defined as the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and wilful
[sic] disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm.
• An offer
defined as ‘‘the manifestation of
willingness to enter into a bargain, so made as to justify another person
in understanding that his assent to that bargain is invited and will
Here, the first issue that we must address is
whether defendant’s motel
meets the defi nition
of [is a]
We conclude that defendant’s facility no longer
meets the definition
of [is] a transient facility.
• There is
no dispute that this incident
the definition of
[was a] ‘‘criminal act or
omission’’ because Daniel pleaded guilty to the criminal
charge of careless discharge of a firearm.
The evidence supports the trial court’s determination that defendant
Ket’s behavior fits
definition of [was] ‘‘predatory conduct.’’
Specifically, the prosecution contended that an investigative subpoena
fits the definition of
[was] a ‘‘proceeding’’ under
the prior inconsistent
Some writers have
an especially hard time stating what the question is. Look at these
examples from Michigan cases:
Thus, properly framed, the question
is whether the official’s particular
acts are within his or her executive authority.
• The question
to be determined, then, is
whether the Legislature intended the amendment to apply retroactively
to the entire 1990 tax year.
In CS & P, the issue
before this Court was
whether the trial court erred in ruling that the plaintiffs did not need
to prove negligence as a predicate to establishing liability under the
trespass-nuisance exception to governmental liability.
• The issue
before this court is whether there
was a sufficient factual basis for the trial court to accept defendant’s
plea and convict him of unarmed robbery.
question presented to a court is obviously before the court and is obviously
there to be determined. We should dispense with these needless words;
the issue is what it is.
If there is no reason
to doubt something’s existence or to hedge about it, writers should
tell it like it is.